Appeal
from the United States District Court for the Northern
District of Georgia D.C. Docket No. 1:12-cv-04038-RWS

Before
TJOFLAT and ROSENBAUM, Circuit Judges, and KAPLAN, [*] District Judge.

KAPLAN, DISTRICT JUDGE.

Jacqueline
Lewis, an African-American police detective in Union City,
Georgia, was terminated abruptly from her position after
about ten years of service. The ostensible reason was that
Ms. Lewis was absent without leave-this notwithstanding that
the Union City Police Department ("UCPD") only days
earlier had placed her on indefinite administrative leave
pending resolution of the questions whether she safely could
be subjected to a Taser shock or exposed to pepper spray.

Jacqueline
Lewis joined the UCPD as a police officer in 2001. She was
promoted to detective in 2008.

In
January 2009, Ms. Lewis suffered a small heart attack. The
episode was unusual in that a cardiac catheterization showed
"no clot and no disease" in Ms. Lewis's heart,
although heart attacks generally are caused by a "clot
inside the coronary arteries." And while Dr. Arshed
Quyyami, a Harvard-trained cardiologist who treated Ms. Lewis
at Emory University's cardiology clinic, described the
damage to Ms. Lewis's heart as being "miniscule to
small," enzyme levels confirmed the diagnosis of a heart
attack. Dr. Quyyami found also that the "global function
of the heart was unaffected," though he noted that
people who have had heart attacks tend to be at greater risk
for subsequent heart attacks.

Ms.
Lewis's primary care doctor, Dr. Erinn Harris, noted that
Ms. Lewis had some residual "mild tricuspid
regurgitation" but concluded that this did not have much
effect on her bodily function. Ms. Lewis occasionally did
complain of paroxysmal nocturnal dyspnea-in other words,
shortness of breath while lying down-which, according to
Harris "can affect [Lewis's] ability to sleep."
Dr. Harris testified, however, that Lewis does not have heart
disease that "chronically affects her life."
Accordingly, Dr. Harris, following Ms. Lewis's heart
incident, cleared her to return to work without any
"cardiac restrictions" because there
"weren't any blockages to her heart."

After
taking the month of February 2009 off, Lewis returned to
full, active duty on March 2, 2009. When she started back,
her lieutenant, Jerry Hester, told her that detectives did
not respond directly to calls but that they waited to be
called out specifically. Hester testified that he assigned
"children and women crimes" to the "lady"
detectives and gave "the more aggressive stuff" to
himself or Sergeant Cliff McClure.

B.
UCPD's New Taser Policy

Prior
to 2010, the UCPD allowed officers to choose which non-lethal
weapons they carried. The options included oleoresin capsicum
("OC") spray, [1] ASP batons, [2]and Tasers.[3] In early 2010,
however, then-Police Chief Charles Odom purchased Tasers for
all UCPD officers and required each to carry one.

Chief
Odom testified that he thought Tasers were superior to the
ASP baton and OC spray because Tasers would "reduc[e]
the risk of injury to officers, suspects, and the public
because [a Taser] allows officers to maintain distance from
an uncooperative subject when attempting to obtain compliance
and effect an arrest." Although the manufacturer, Taser
International, does not require trainees to receive a Taser
shock to be certified in Taser use, Odom required his
officers to receive a five-second shock as part of the Taser
training. In moving for summary judgment, he offered five
justifications for this requirement:

"assisting [officers] in (1) evaluating the appropriate
circumstances under which to deploy the Taser, (2) testifying
in Court about the effects of the Taser, (3) knowing that
they can go 'hands-on' with an uncooperative subject
without being shocked, (4) considering how to defend
themselves if threatened with a Taser or similar device, and
(5) understanding what it feels like to be shocked by the
Taser in the event of an accidental exposure so that they
will have confidence in their ability to survive the
experience."

C.
Ms. Lewis Is Scheduled for Training

Similar
to Taser certification, officers certified to use
pepper-spray required training which involved exposure to
pepper spray. Lewis previously had been exposed to pepper
spray when she was at the police academy, but was not
certified in its use. On June 14, 2010, the department
therefore scheduled Lewis for pepper-spray training three
days later, on June 17, 2010.

Ms.
Lewis was concerned that her prior heart attack might
increase her risk of injury from a Taser shock or exposure to
pepper spray as compared with the average officer. So she saw
Dr. Harris, her primary care doctor, on June 15, 2010 to
discuss the issue.

Dr.
Harris shared Ms. Lewis's concerns, especially with
regard to the Taser shock, worrying that the "electrical
current . . . could cause undue stress to [Lewis's] . . .
heart." Dr. Harris therefore wrote to Chief Odom. Her
letter explained that she had been treating Ms. Lewis for
"several chronic conditions including a heart
condition" and that she "would not recommend that a
Taser gun or OC spray be used on or near [Lewis] secondary to
her chronic conditions." Dr. Harris urged the department
to take this recommendation "into consideration when
making any decisions about occupational training."

D.
Union City's Leave Policies

At this
point we turn briefly to Union City's policies with
respect to employee leave, as they are essential to
understanding events subsequent to Dr. Harris's June 15,
2010 letter.

The
City of Union City's Employee Handbook (the
"Handbook"), as revised in March of 2010 and in
force at the time of the events of this lawsuit, provided for
various types of leaves of absence. Chapter 6, section 1.A,
permitted an employee to request an unpaid leave of absence
of up to 180 days. Notably, this provision stated also,
however, that "[a]n employee may also be placed on leave
of absence status without application."

In
addition, Union City had a medical leave policy under the
Family and Medical Leave Act ("FMLA"). It provided
employees with up to 12 weeks of unpaid leave for, inter
alia, a "serious health condition that makes the
employee unable to perform the functions of that
employee's job." Under the procedures set forth in
the Handbook, when the need for medical leave could be
anticipated, the employee was required to submit the
paperwork thirty days prior to the effective date of the
leave. Where such need was unanticipated, however, the
Handbook provided no time period within which the paperwork
had to be submitted.

E.
Ms. Lewis Placed on Administrative Leave

On June
17, following Chief Odom's receipt of Dr. Harris's
June 15 letter, Assistant Chief Lee Brown notified Ms. Lewis
by letter on June 17 that she was being placed on
"administrative leave without compensation
until such time as your physician releases you to return
to full and active duty." He wrote that he took
this action due to what he described as Dr. Harris's
"instructions [that Lewis] . . . not come into contact
with either" a Taser or OC spray, which, Brown wrote,
could happen in "a variety of [field] and office
settings." The letter told Ms. Lewis to contact Tracie
McCord in human resources to complete "the necessary
FMLA paperwork concerning your absence." But the letter
fixed no time period during which Ms. Lewis was required to
be medically cleared to return to full and active duty. Nor
did it specify any date by which the FMLA paperwork had to be
completed. Lastly, although the letter said Ms. Lewis was
being placed on leave without pay, it gave her the option to
use her accrued leave "until the time such leave is
expended," an option that would have permitted her to
continue being paid until she exhausted her accrued vacation
and sick time. The implication of the letter, a jury might
find, was that Ms. Lewis would be on unpaid administrative
leave indefinitely, save to the extent she was on paid leave
until she used her accrued paid leave to continue to receive
her salary.

Ms.
Lewis wrote Chief Odom on July 1, 2010, asking permission to
resume her duties as a detective, explaining that she was
"only asking for an accommodation on the taser [sic] and
OC training." She sent Chief Odom a second letter, dated
July 1, requesting permission to "seek temporary
employment elsewhere while the Union City Police department
and my doctor (Dr. Harris) are trying to come to some
conclusion on this medical matter." She expressed
concern in this second letter that her sick and vacation
leave had nearly run out and that she "need[ed] to be
able to provide for [her] family."

Chief
Odom directed Assistant Chief Brown to reply to Ms. Lewis,
which he did by letter dated July 1, denying her request to
return to work. Brown noted first that Lewis was "out of
work early in 2009 with what was suspected of being a heart
attack," but that she subsequently received medical
clearance to return to work without limitation. Brown then
stated that "this changed"-presumably referring to
Ms. Lewis's ability to work without limitation-when the
department received Dr. Harris's June 15 letter.
Brown's letter concluded that, "[b]ased on your
current job description, your doctor's letter essentially
makes it impossible for you to work or be at work." It
denied Ms. Lewis's request to resume her duties
"until your doctor releases you for duty." Again,
no time frame was fixed for obtaining such a medical release.

Dr.
Harris was on vacation for the first week of July and was
unreachable until July 7. Ms. Lewis so informed Assistant
Chief Brown on July 2, adding that she had scheduled an
appointment for the day of Dr. Harris's return. She asked
also for Assistant Chief Brown's cell phone number so Dr.
Harris could call him directly.

Ms.
Lewis emailed again on July 6 to remind Assistant Chief Brown
that Dr. Harris still was on vacation. He replied that day,
providing his office telephone number and instructing Ms.
Lewis that Dr. Harris should call him or his assistant to
schedule a conversation. He stated also that "[a]s far
as your seeking employment outside of the agency after filing
for Family and Medical Leave[, which never occurred], it
would be, as I understand, illegal for you to be employed
elsewhere while you are currently on FMLA Leave with our
department." At that time, however, Ms. Lewis was on
administrative leave pursuant to Chief Brown's June 17
letter, not FMLA leave. In fact, she had not applied for FMLA
leave.

F.
Ms. Lewis Is Terminated

Chief
Odom testified that "I don't want to use the word
with 'bated breath,' but we were waiting for either
her doctor's appointment on the Wednesday [July 7] or
[to] hear from the doctor on Wednesday or for her to bring us
something on Wednesday to say here is where we are at or here
is where we need to go or . . . there is some kind of a plan
of action here." Dr. Harris in fact attempted to call on
July 7, but she did not have the correct phone number. In
addition, although Dr. Harris largely filled out the FMLA
paperwork on July 7, she did not complete, sign, and send it
to the police department until July 12.

On July
8 at 10 a.m., Assistant Chief Brown terminated Ms. Lewis. He
did so without speaking to human resources manager Tracie
McCord. Nor did he make any attempt to contact or to have
anyone else from the department contact Dr. Harris. His
termination letter stated that Ms. Lewis had been placed on
administrative leave without pay on June 17 but had had the
option to use her accrued leave until it was exhausted. Brown
then stated that her accrued leave was exhausted on July 5,
but that he "granted her request" because Ms. Lewis
had advised him that Dr. Harris was on vacation until July 7,
though it is not clear to what request, if any, this
referred. Restating but otherwise ignoring the fact that his
June 17 letter had placed Ms. Lewis on administrative leave
without pay and imposed no time limits at all, he concluded
that "[b]ecause you have exhausted all of your accrued
[paid] leave and have failed to complete and turn in the
necessary paperwork to be placed on Family and Medical Leave,
your absence is unapproved and you are terminated effective
immediately." Although Assistant Chief Brown had told
Ms. Lewis one week earlier that she was not
permitted to return to work, Chief Odom
characterized this as "a situation where an employee has
just failed to come to work." Chief Odom acknowledged
that he never advised Ms. Lewis that she had to apply for 180
days of unpaid leave under the city's administrative
leave policy, although she already had been placed on
administrative leave, or warned her that she had to file FMLA
paperwork within a certain time frame to avoid being
terminated.

During
the afternoon of July 8, after the termination letter already
had been sent, Dr. Harris spoke with Assistant Chief Brown.
To Dr. Harris's recollection, this conversation was
unpleasant and left her "quite offended" because
she felt that Assistant Chief Brown "questioned my
professionalism and my professional opinion." Brown gave
Dr. Harris the impression that he thought "Ms. Lewis was
influencing [Harris's] decision to say that [Lewis]
should not use the Taser or the pepper spray." Dr.
Harris made clear that her opinion was based solely on her
professional medical judgment and that she does not "do
things because patients tell me to do them." In his
deposition, Brown stated that he "would have had a
conversation with [Dr. Harris] about reasonable
accommodations" if she had called before July 8. But
when the questioner pointed out to him that Dr. Harris had
been on vacation, Brown responded simply: "According to
Jackie [Lewis]."

By way
of summary, it bears pointing out some conclusions a jury
reasonably might draw from the preceding evidence. Given the
nature of Ms. Lewis's interactions with the UCPD up
through July 7, her termination on July 8 is mysterious in an
important respect. She had been placed on unpaid, indefinite
administrative leave on June 17, at which time she was given
the option first to use her accrued vacation and sick time so
that she could continue receiving a salary until that leave
was exhausted. She never was given any deadlines, nor did any
appear in the written city policies, by which she had to
obtain medical clearance, file FMLA paperwork, or otherwise
resolve the questions about whether she could perform her job
duties. She never was transferred from administrative leave
to another type of leave. Indeed, at oral argument,
defendants conceded that Ms. Lewis was on administrative
leave at the moment she was fired-an involuntary,
unpaid leave initiated by a supervising officer. They
conceded further that inherent (though unarticulated) in the
act of firing Ms. Lewis was the act of terminating her
administrative leave. Otherwise, there is no plausible way to
justify the stated reason for her termination, which was that
she was absent without leave. Moreover, Assistant Chief
Brown's deposition response to the examiner's
suggestion that Dr. Harris had been on
vacation-"[a]ccording to Jackie"-might be regarded
by a jury as indicating a belief by Brown that Ms. Lewis had
lied about Dr. Harris's being away in early July.

We make
no findings of fact here, of course. We are obliged, however,
to view the evidence in the light most favorable to the
non-moving party, Ms. Lewis, and to draw all reasonable
inferences in her favor. We therefore point out that a jury
in these circumstances reasonably could find that the stated
reason for terminating Ms. Lewis-that she was absent without
leave-was a pretext for one or more other motives. And there
are several possible alternative motives for which there is
some evidentiary support. They include a belief that Ms.
Lewis (1) could not properly do her job in consequence of her
heart condition, (2) had procured unwarranted support from
Dr. Harris in an effort to avoid the Taser test or OC
training while retaining her job, and (3) had lied about Dr.
Harris's unavailability until July 7. We discuss
additional possibilities below.

G.
Administrative Appeal

Lewis
appealed her termination to the Union City manager, Steve
Rapson. At that hearing, Ms. Lewis was represented by an
attorney and given the opportunity to present evidence.
However, she did not present evidence regarding whether she
may have been entitled to 180 days of unpaid administrative
leave or to question whether she had fully exhausted her paid
leave. Nor did Mr. Rapson or anyone from the city undertake
an independent investigation of that issue. Mr. Rapson
ultimately upheld Chief Odom's decision to terminate Ms.
Lewis.

II.
OTHER PROCEEDINGS

Ms.
Lewis filed suit in the Northern District of Georgia on
November 19, 2012, alleging disability discrimination under
the Americans with Disabilities Act and race and gender
discrimination under 42 U.S.C. § 1981 and Title VII.

Defendants
moved for summary judgment dismissing all of Ms. Lewis's
claims. In opposing the motion, Ms. Lewis pointed to two
other Union City police officers as comparators for how she
was treated.

The
first was Sergeant Cliff McClure, a white man, who was placed
on administrative leave after failing the balance portion of
a physical fitness test on April 22, 2014. He was given 90
days of leave to remedy the conditions that caused him to
fail the test and to retake it.

The
second comparator was Patrol Officer Walker Heard, a white
man who failed a physical fitness test. Heard was placed
initially on leave without pay for 90 days, which enabled him
to work with medical professionals to pass the
fitness-for-duty test. Nearing the end of his 90-day leave,
Officer Heard's attorney sent a letter to the UCPD
stating that Heard had a disability and requesting that the
fitness-for-duty test be waived. Chief Odom offered Heard the
chance to transfer to a dispatcher position, which did not
require him to pass the fitness-for-duty test. The dispatcher
position was held open for Heard for eleven months before the
UCPD terminated him when he declined to transfer. At that
point, Heard had been on administrative leave for 449 days
before he was finally fired.

On
November 26, 2014, a magistrate judge issued a report and
recommendation that recommended granting the defendants'
motion for summary judgment in its entirety on the bases
that: (1) on her ADA claim, Ms. Lewis had failed to
demonstrate a genuine issue of fact that she was a
"qualified individual," thus failing to make out
one of the three elements of her prima facie case,
and (2) on her race and gender claims, Ms. Lewis's
purported white male comparators were not "similarly
situated" because they had failed physical fitness
tests, not weapons certification tests, and because Ms.
Lewis's lead physician had expressed concern about her
proximity to Tasers and OC spray. The district court adopted
the R&R on March 17, 2015, accepting in all relevant
respects the magistrate's reasoning and conclusions. Ms.
Lewis appealed from that order and from the judgment entered
upon it.

On
December 15, 2017, this panel issued an opinion affirming in
part and reversing in part the district court's judgment.
We affirmed to the extent that the judgment dismissed the
Section 1981 and Equal Protection claims against the City of
Union City and against Chief Odom. We reversed in all other
respects and remanded for further proceedings consistent with
the opinion. Specifically, we held that the evidence
presented by Ms. Lewis was sufficient to establish a
prima facie case under the ADA. With respect to her
race and gender claims, we held that plaintiff presented (i)
sufficient evidence to establish a genuine issue of fact
under the McDonnell Douglas burden shifting
framework, and (ii) a convincing mosaic of circumstantial
evidence that would allow a jury to infer intentional
discrimination.

On June
28, 2018, the full Court vacated our panel opinion and
ordered that the case be reheard en banc[4] "to clarify
the proper standard for comparator evidence in
intentional-discrimination cases."[5] On March 21,
2019, the en banc Court held that the appropriate standard
for such evidence is whether the proposed comparators are
"similarly situated in all material
respects."[6] Applying this standard to Ms. Lewis's
case, the Court determined that she failed to make out a
prima facie case under McDonnell Douglas
because she and her proffered comparators were not so
situated.[7] It then remanded to this panel for
proceedings consistent with its opinion.[8]

Neither
Ms. Lewis's ADA claims, nor her "convincing
mosaic" theory of liability was considered by the en
banc Court. Those claims and any other pending matters were
returned to this panel for resolution.[9] As our prior
decision on those matters was vacated when en banc review was
granted, it now is incumbent upon us to restate and, as
appropriate, modify or amplify our views on them.

III.
DISCUSSION

A.
Standard of Review

"We
review the district court's grant of summary judgment
de novo, viewing all evidence and drawing all
reasonable factual inferences in favor of the nonmoving
party." Strickland v. Norfolk S. Ry. Co., 692
F.3d 1151, 1154 (11th Cir. 2012). Summary judgment is
appropriate if the movant shows that "there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a); Strickland, 692 F.3d at 1154. The court must
draw all reasonable inferences in favor of the nonmovant and
may not weigh evidence or make credibility determinations,
which "'are jury functions, not those of a
judge.'" Feliciano v. City of Miami Beach,
707 F.3d 1244, 1252 (11th Cir. 2013) (quoting Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)).

B.
The Disability Discrimination Claim

Under
the Americans with Disabilities Act (the "ADA"), 42
U.S.C. § 12112(a), it is unlawful for an employer to
"discriminate against a qualified individual on the
basis of disability in regard to . . . discharge of
employees, . . . and other terms, conditions, and privileges
of employment." To establish a prima facie case
for disability discrimination, a plaintiff must produce
sufficient evidence to permit a jury to find that she: (1) is
disabled, (2) is a qualified individual, and (3) was
discriminated against because of her disability. Mazzeo
v. Color Resolutions Int'l, LLC, 746 F.3d 1264, 1268
(11th Cir. 2014) (citing Holly v. Clairson Indus.,
L.L.C., 492 F.3d 1247, 1255-56 (11th Cir. 2007)).
"The ADA defines the term 'disability' as (1) a
physical or mental impairment that 'substantially limits
one or more' of an individual's 'major life
activities,' (2) a 'record of such an
impairment,' or (3) 'being regarded as having such an
impairment' as described in subsection (1)."
Mazzeo, 746 F.3d at 1268 (quoting 42 U.S.C. §
12102(1)).

1.
Ms. Lewis's Evidence Is Insufficient to Meet Her
Prima Facie Burden that She Was Actually Disabled, But Is
Sufficient on Whether She Was Regarded as Disabled.

Ms.
Lewis argues that she meets the definition of
"disabled" under both the "actually
disabled" and the "regarded as disabled"
prongs. The district court, adopting the R&R, held that
Ms. Lewis's evidence had sufficiently demonstrated, for
the purpose of her prima facie case, that she had a
physical impairment, but that she had not produced evidence
sufficient to demonstrate that the impairment substantially
limited any major life activity. It therefore held that there
was no basis for a disability discrimination claim based on a
theory that she was actually disabled. But the district court
agreed also with the magistrate judge's report and
recommendation that there was sufficient evidence to raise a
genuine issue of fact on the question of whether Ms. Lewis
was "regarded as" disabled.

a.
The court below correctly concluded that Ms. Lewis did not
produce sufficient evidence to permit a conclusion that she
is actually disabled.

Ms.
Lewis contends that she is disabled because her heart attack
left her with a "permanent injury to her heart and [she]
continues to suffer regurgitation of the mitral tricuspid,
and aortic heart valves." The district court rejected
this argument, holding that she may have produced sufficient
evidence of a physical impairment but she failed to adduce
sufficient evidence that that impairment substantially
limited any major life activity. Ms. Lewis here challenges
this conclusion, contending that her heart condition
substantially limits her ability to sleep and breathe.

An
individual who is "actually disabled" is one with
"a physical or mental impairment that substantially
limits one or more major life activities." 42 U.S.C.
§ 12102(1)(A). Major life activities "include, but
are not limited to, caring for oneself, performing manual
tasks, seeing, hearing, eating, sleeping, walking, standing,
lifting, bending, speaking, breathing, learning, reading,
concentrating, thinking, communicating, and working."
Id. § 12102(2)(A).

Congress
amended the ADA by enacting the ADA Amendments Act of 2008
(the "ADAAA") with the goal of broadening the
interpretation of a disability under the ADA. It sought to
"convey that the question of whether an individual's
impairment is a disability under the ADA should not demand
extensive analysis." Mazzeo, 746 F.3d at 1268
(quoting 42 U.S.C. § 12101 Note). It was concerned also
that "the Supreme Court's interpretation of the
phrase 'substantially limits' . . . had 'created
an inappropriately high level of limitation necessary to
obtain coverage under the ADA.'" Mazzeo,
746 F.3d at 1269 (quoting 42 U.S.C. § 12101 Note). In
consequence, Congress added a rule of construction to the
definition of disability, instructing that "[a]n
impairment that is episodic or in remission is a disability
if it would substantially limit a major life activity when
active." 42 U.S.C. § 12102(4)(D).

We
accept arguendo that Ms. Lewis's evidence is
sufficient to permit a fact finder to conclude that her heart
is physically impaired. See, e.g., Silk v. Bd.
of Trustees, Moraine Valley Cmty. Coll., Dist. No. 524,
795 F.3d 698, 706 (7th Cir. 2015). Nevertheless, there
remains the question whether the evidence is sufficient to
permit a conclusion that the impairment substantially limits
a major life activity.

Ms.
Lewis argues that her paroxysmal nocturnal dyspnea
substantially limits the major life activities of breathing
and sleeping. The only such evidence in the record, however,
is plaintiff's own testimony that she has "periodic
. . . shortness of breath," and Dr. Harris's
testimony that this could-but, notably, not that it did-
affect Ms. Lewis's ability to sleep. Without minimizing
any discomfort these episodes may cause Ms. Lewis, the record
here is devoid of evidence of the severity, frequency, and
duration of these episodes. Nor is there any evidence of the
extent to which they limit Ms. Lewis's ability to sleep
or that could lead a reasonable jury to conclude that Lewis
is substantially limited in a major life activity.
Compare Mazzeo, 746 F.3d at 1269 (finding sufficient
evidence of an actual disability where record included
affidavit from plaintiff's doctor detailing both the
"specific pain the condition caused, and the limitations
on major life activities" (quotations omitted)),
with Holton v. First Coast Serv. Options, Inc., No.
16-15289, 2017 WL 3446880, at *3 (11th Cir. Aug. 11, 2017)
(distinguishing Mazzeo where plaintiff's
chiropractor "included nothing to link her back
impairment to the limitations on her major life activities
that she alleged"), and Vaughan v. World Changers
Church Int'l, Inc., No. 1:13-CV-0746-AT, 2014 WL
4978439, at *9 (N.D.Ga. Sept. 16, 2014) (distinguishing
Mazzeo where plaintiff's "treating
physician did not, even in a conclusory fashion, state that
the effects of this pain on her major life activities . . .
were at all substantial, or at least substantial as compared
to most people in the population" and "was unable
to assess how episodic Vaughan's pain would be").
Accordingly, we agree with the district court that Ms. Lewis
did not produce evidence sufficient to raise a genuine issue
of fact that she is actually disabled.

b.
Ms. Lewis has produced evidence sufficient to raise a genuine
issue of fact on whether she was "regarded as"
disabled.

Ms.
Lewis contends also that she is "disabled" under
the "regarded as" definition regardless of whether
she is actually disabled. The district court agreed, holding
that she had produced evidence sufficient to permit findings
that the UCPD regarded her heart condition as a physical
impairment and took adverse action- placing her on
leave-because of the impairment.

The ADA
provides that an individual is "regarded as"
disabled if she "establishes that . . . she has been
subjected to an action prohibited under this chapter because
of an actual or perceived physical or mental impairment
whether or not the impairment limits or is perceived to limit
a major life activity." 42 U.S.C. § 12102(3)(A).

As the
district court held, there was ample evidence here to raise a
genuine issue of fact as to whether the UCPD regarded Ms.
Lewis as disabled. Chief Odom himself was a witness to Ms.
Lewis's heart attack. In his June 17 letter putting Ms.
Lewis on leave, Assistant Chief Brown referred to her chronic
conditions and instructed her to complete FMLA paperwork,
suggesting that he believed Ms. Lewis had a medical condition
warranting medical leave. Next, Assistant Chief Brown's
July 1 letter forbade Ms. Lewis from returning to work until
"everything is cleared up with your doctor," said
that "your doctor's letter essentially makes it
impossible for you to work or be at work," and concluded
that Ms. Lewis could not return "until your doctor
releases you for duty." Assistant Chief Brown's July
6 email again referred to the possibility of Ms. Lewis taking
leave under FMLA. Indeed, the department's own stated
reason for putting Lewis on leave-that it feared for her
safety in view of her heart condition-demonstrates the
department's belief that Ms. Lewis's medical
condition set her apart from other police officers.

Defendants
nevertheless argue that they did not regard Ms. Lewis as
disabled and that they did not put her on administrative
leave because of her actual or perceived heart condition.
Rather, they assert, they construed Dr. Harris's letter
recommending that Ms. Lewis not be exposed to OC spray or a
Taser shock as meaning that Ms. Lewis would be in danger by
virtue ...

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